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oil giant Chevron accountable for its human rights
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Wednesday, October 30, 2013

Today, the legal team for Steven Donziger and the
Ecuadorians targeted by Chevron's retaliatory RICO suit filed a motion—filled
with devastating detail—to strike the testimony of the oil giant's star
witness.

That star witness, disgraced former Ecuadorian Judge Alberto Guerra, testified during the RICO trial last week that representatives of the
Lago Agrio Plaintiffs secured the opportunity to ghostwrite the 2011 judgment
against Chevron issued by the Ecuadorian court by promising the presiding judge
$500,000.

Well, I guess Chevron can rest its case. Silver bullet. Or,
more like magic bullet.

One of the main problems with the story—besides the fact
that it never happened—is that after weaving his tall tale, Guerra admitted
that he had offered between ten and twenty bribes to judges during his career
as a lawyer and after becoming a judge, accepted about the same number of
bribes, sometimes for as small as $200, to "fix" cases.

But it gets worse, at least for the credibility of his
fanciful testimony. From today's motion:

Guerra further
understood from multiple conversations and lunch meetings with Chevron
attorneys—where, as Guerra’s testimony revealed, they always fully heard out
his offers and consulted with their principals before allegedly saying
“no”—that as an out-of-work former judge with no role in the case, he simply
didn’t have the “goods” Chevron wanted. Guerra had every incentive to manufacture
those goods so that he could bargain hard with Chevron about the price of his
testimony. And bargain he did, lying repeatedly to Chevron—i.e., that he was in
possession of emails that would confirm Chevron’s ghostwriting allegations;
that he possessed drafts of the Judgment; that the Lago Agrio Plaintiffs had
recently offered him $300,000 to cooperate—in order to improve his bargaining
position.

Okay, so the guy is an admitted liar and criminal but you
know, maybe he's telling the truth now. What incentive could he possibly have
to make up a new story now? Back to the motion:

When, after a long
career of paying and accepting bribes, Guerra apparently decided that he would
place himself in the service of Chevron, the former judge was earning $500 per
month and had no savings. In contrast, Chevron has committed to paying Guerra,
for a period of at least two years, a “salary” of $10,000 per month—20 times
more than he was earning in Ecuador. It is unclear what need Guerra has for
such a generous salary, in light of the fact that Chevron also: (i) provides
Guerra with a monthly $2,000 “housing allowance”; (ii) bought Guerra a car and
is paying for his auto insurance; (iii) is paying for health insurance to cover
Guerra, his wife, his son, his son’s wife, and his grandchildren; (iv) paid
Guerra roughly $12,000 to purchase household items upon his move to the U.S.;
(v) paid Guerra’s moving expenses, including five airline tickets,
transportation of personal items, and a temporary hotel stay upon arriving in
the U.S.; (vi) paid Guerra roughly $50,000 in exchange for “evidence,”
including $10,000 for belatedly finding a single document that supposedly eluded
Guerra upon prior searches because it was “stuck” to something else; and (vii)
pays the legal fees of Guerra’s various attorneys, including the fees of the
lawyers handling immigration issues for his various family members. Guerra’s
relocation on Chevron’s dime also reunited him with his daughter and a second
son, who live in the U.S. and who Guerra had not seen in several years.

In other words,
Chevron is bribing a judge to say that Donziger bribed a judge.

And the package Chevron has put together for this judge is
outrageous, and egregiously runs afoul of federal law and ethical rules of
conduct.

The motion outlines how the payments violate the federal Anti-Gratuity
Statute as well as the Rules of Professional Conduct of New York, where the
trial is taking place. By all means, read the motion for a detailed explanation
of the rules but here is the view of prominent legal scholar and law professor
Erwin Chemerinsky in a sworn declaration for the Defendants:

“if a party or its counsel were
permitted to pay a testifying witness for physical evidence, beyond the
reasonable value of that evidence, and to pay the witness a salary in exchange
for an agreement to testify, there would be little left of the rule against
compensating fact witnesses.”

And the conclusion of the motion on the payments to Guerra?:

The bottom line is
that Guerra is and apparently always has been desperate for money, and will
stoop to extraordinary lows to get it—including fabricating a story for
Chevron, weaving big lies with small truths in an effort to create the illusion
of a verified account. Guerra’s recent testimony only serves to drive his
unreliability home.

The motion is well worth reading in its entirety as it also
highlights the admitted lies, the contradictions, and the suspect assertions in
Guerra's testimony, as well as the total lack of anything approaching
corroborating evidence for his explosive allegations.

During cross-examination, Guerra explained that he spent 3-4 days of every week for 3 full months
in New York working with a team of Gibson Dunn lawyers led by Randy Mastro in
preparation for his two days in court. That should be enough time for even a
novice actor to learn his lines, no matter how fanciful a story he’s telling.

And hey, if it means reuniting with his beloved family in
the United States, where he’ll enjoy a lifestyle he could only dream of before,
it’s time well spent. And then some.

And for Chevron?

Simple. Guerra’s testimony is Chevron’s ‘magic bullet’ to
save its RICO case and help the company avoid paying the $19 billion judgment
for its devastation of the Ecuadorian Amazon.

If it worked, it would be money well spent. And with a biased federal judge presiding, it
probably will work – until a real court, the Second Circuit Court of Appeals,
reviews the matter down the road.

Never mind that the money spent on bribing Guerra to
fabricate his story could be used to clean up the company’s contamination in
Ecuador. But for Chevron, living up to its legal and moral responsibilities
overseas would set a terrible precedent.

In the end, Guerra’s preposterous testimony, bought and paid for by
Chevron, his court performance the culmination of months of preparation
by a team of highly-paid lawyer-thespians at Gibson Dunn, adds one more
layer of absurdity to the farce that the current proceedings represent. A
single federal judge in New York can no more act as an appellate court
for the entire Ecuadorian Judiciary than Alberto Guerra’s words can be
taken as the truth. And Chevron can no more hide from the truth than the
company’s legal machinations can conceal its contamination, and its
liabilities, in Ecuador.